1 year ago
U.S. District Court Judge Tanya Chutkan is poised to preside over a historic trial that will feature a defendant unlike any who has set foot in her court or any other: former President Donald Trump.
But last week, in a much lower-profile trial — her first since Trump's federal indictment for election subversion — Chutkan took on some of the same thorny issues that will, on a much grander scale, come into play when the former president faces a jury next year.
Chutkan probed potential jurors' strong feelings about Trump and his lies about the 2020 election. She grappled with disputes over evidence-sharing. And she laid down the law, quite literally, with a recalcitrant defendant who violated the terms of his pretrial release — just as Trump has been accused of by prosecutors.
The defendant was Antony Vo, an Indiana man charged with misdemeanors for breaching the Capitol with the Jan. 6, 2021, mob. POLITICO observed the trial from its first moments of jury selection Monday to a Friday afternoon verdict, and while Trump's case will no doubt be far more complicated, Chutkan's handling of some core trial issues are instructive about the way she runs her courtroom.
Trump’s trial before Chutkan, an appointee of Barack Obama, is scheduled to begin on March 4. He is accused of conspiring to obstruct Congress and mount a sweeping disinformation campaign to subvert the election. Vo, in some respects, was a target of that campaign, embracing the former president’s false claims of fraud and, according to prosecutors, becoming a willing vessel for his last-ditch effort to remain in power.
The Vo trial, which ended with a guilty verdict on all four counts Friday, was lightly attended. But one significant figure was watching closely from the public gallery: a member of special counsel Jack Smith’s team, which is prosecuting Trump.
Here are some observations from the trial:
The Trump factor
Trump is hoping he never has to face Chutkan at all: He has mounted a longshot bid to disqualify her from the case for alleged bias. Trump claims that Chutkan has formed negative opinions about him from “extrajudicial” sources — meaning information she learned outside of her job as a judge.
But Chutkan has had plenty of reasons to evaluate Trump’s conduct that are squarely within the business of her court. After all, the former president lurks in the background of virtually all Jan. 6 defendants’ trials. Chutkan, like all federal judges who have handled Jan. 6 cases, has had to wrestle with the impact of Trump’s words on the rioters’ mental states, their belief in his false claims that the election was stolen and even his impact on the timing and route they took from the Ellipse to the Capitol.
And like most of her colleagues on the federal bench in Washington, Chutkan has considered and rejected attempts by Jan. 6 defendants to claim that they believed Trump gave them permission to go inside the Capitol on Jan. 6. Despite Trump’s incendiary rhetoric, they’ve noted, Trump’s words did not authorize anyone to break the law and enter the restricted Capitol grounds.
Chutkan turned down a bid by Vo to cite this defense weeks before his trial began, but moments before opening statements, prosecutors complained that Vo was trying to sneak it in by playing clips from Trump’s Jan. 6 rally, including portions in which he urged his supporters to march down Pennsylvania Ave. to Congress.
Chutkan, a former public defender who was confirmed to the federal bench in 2014, criticized Vo’s attorneys, who she said were trying to sneak in the so-called public authority defense “through a back door.” She also noted that in the small number of cases where defendants were permitted to make the argument, “It has been a losing defense every single time.”
Ultimately, however, she permitted Vo’s attorneys to mention Trump’s directive to supporters because of how it might have influenced Vo’s thinking that day. In addition, she said she was confident every member of the jury had probably seen portions of the speech.
“Is there anyone who hasn’t seen that video?” she wondered, adding, “I don’t think there’s a person in this city who isn’t aware there was a speech that day.”
‘We all have opinions’
The most instructive part of virtually any criminal trial is the way a judge handles jury selection, more an art than a science to screen out jurors who likely can’t be fair to one side or another. In Jan. 6 cases, that challenge is magnified by the intense feelings Trump provokes, the visceral memories of the violence that pervade the D.C. jury pool and the omnipresent news coverage of the attack and subsequent investigations. And in Trump’s trial, all of those concerns are sure to be intensified even further — so Chutkan’s approach to them in the Vo case offers a preview of future legal battles.
Trump and his lawyers have contended that he cannot receive a fair trial in the nation’s capital, and they’ve even suggested the case should be moved to West Virginia, though they have yet to formally request such a transfer.
Chutkan has rejected attempts by other Jan. 6 defendants to change venues, and during jury selection in the Vo case, she repeated her universal creed: It’s OK to have opinions and biases. What matters, she said, is “whether you can put those opinions aside and be fair and impartial.”
Her comments mirror longstanding legal precedents about picking a jury. Courts have long noted that political opinions or gut feelings about a case are not automatically disqualifying, so long as jurors convince the judge and attorneys that they will put those opinions aside and assess the case based only on the evidence presented in court.
When one prospective juror noted he had “deep frustration with public officials who say one thing in public but say different things in private,” Chutkan asked whether he could be fair to a defendant who is a “supporter of the former president.”
The prospective juror said he could, adding that the defendant “has the right to his political beliefs.”
Potential jurors were required to indicate whether they had strong feelings about people who don’t accept the 2020 election results, which elicited some responses specifically about Trump. Several prospective jurors said they held the leaders who ignited those claims responsible but not necessarily those who believed or had been “brainwashed,” as one of them put it.
Chutkan did not consider those broader comments immediately disqualifying, so long as juror candidates insisted they would not consider political views or their own feelings about Jan. 6 when considering the evidence against Vo.
‘This is a violation’
Chutkan made clear that she has little patience for defendants who don’t comply with the pretrial restrictions they agree to at the outset of their cases. That’s a particularly pertinent quality in light of prosecutors’ allegations that Trump has systematically violated his conditions by making threatening comments about the judge, witnesses and prosecutors.
On Friday morning, Chutkan revealed that Vo’s pretrial services officer had received an alert from a “concerned citizen” that Vo was violating his conditions by attending three nightly vigils outside the Washington jail with supporters of incarcerated Jan. 6 defendants. Vo’s conditions forbade him from coming to Washington for anything but meetings with his attorneys and court proceedings.
“I could, in my discretion, allow you to become more familiar with the D.C. jail,” Chutkan warned. “But I’m not going to.”
Instead, the judge said, she would impose an 8 p.m. curfew during Vo’s remaining time in Washington.
Chutkan repeatedly emphasized that her frustration was not with the purpose of the nightly rallies.
“It’s not that he is still supporting Jan. 6,” Chutkan said. “That’s fine. His political beliefs, entirely his business.”
But Chutkan said she found Vo’s decision to violate the limitations on his D.C. activities to be intentional — and she noted that in at least one video of the nightly event, Vo appeared to attempt to conceal himself from the camera.
“I do find this is a violation,” she said. “I don’t think this is inadvertent.”
Chutkan’s hard line on adherence to pretrial conditions may bear heavily on how she views Trump’s repeated attacks on potential trial witnesses in his Washington, D.C., case. She’s already warned Trump that those “inflammatory” comments might force her to speed his trial date. And she’s currently weighing a request from Smith to order Trump to sharply constrain those attacks or face consequences.
‘Trial by ambush’
Very few Jan. 6 misdemeanor cases have gone to trial, which makes Vo’s case something of an outlier. Those that do have typically taken a day or two to resolve. But Vo’s dragged on for a week, to Chutkan’s chagrin, amid a slow presentation by prosecutors and a persistent push by the defense.
Chutkan reached a boiling point when Vo’s defense attorneys, members of the Federal Public Defender’s office, attempted to introduce evidence during a witness’ cross-examination that they had never shared with prosecutors or the judge. Chutkan quickly recessed the trial and upbraided the attorneys, who she said were attempting to conduct a “trial by ambush” in direct contravention of her push to organize and preview all trial evidence weeks earlier.
“If the government had done this, you would be screaming bloody murder,” she said to defense attorney Eugene Ohm. “If they had done this to you, I would be seriously entertaining your motion for a mistrial.”
In between witness testimony, the arguments — sometimes deeply personal among the defense attorneys and prosecutors — carried on for two days of the trial. Ultimately, Chutkan — a former defense lawyer — agreed to allow some of the defense’s undisclosed exhibits to be admitted as evidence in the trial.
“I’m bending over backward to make sure your client has a fair trial,” Chutkan said.
The fight followed a similar pretrial dispute, when Vo’s attorneys attempted to dismiss the case by arguing the prosecution hadn’t turned over evidence about whether Capitol Police inadvertently seemed to invite rioters into the Capitol. Chutkan, however, rejected the claim, noting that the evidence Vo was seeking was far from exculpatory and certainly had not been hidden from the defense.
“Willful suppression. I’ve seen it before. It’s happened to me,” Chutkan said, referring to her days as a defense attorney.
She said that she views prosecutors as having an obligation to be “overinclusive” in the evidence they turn over — anything that could even conceivably be beneficial to the defense. “In this court, this is how I view it,” she said.
However, she added to Ohm, “They don’t have an obligation to do your investigation.”
Chutkan has signaled a similar approach in Trump’s case. She has rejected Trump’s request for years of pretrial preparation — despite millions of pages of evidence — in part because of Smith’s “overinclusive” approach that included millions of duplicative pages or records he was not required to share.
Strict scheduling and a balmy courtroom
From the first moment of jury selection and through the course of the trial, Chutkan made clear she values jurors’ time and comfort. She scolded the defense for raising a last-minute issue that delayed the start of jury selection on the first day of trial.
“One thing I like to do, having been a juror myself, is not keep a jury waiting,” Chutkan said.
When selection began, an apologetic Chutkan lamented that “jury service does involve some amount of waiting.”
Chutkan, a Jamaica native, also repeatedly mentioned the temperature of her courtroom, describing herself as “a tropical person” who liked to keep the room warm despite a preference among many judges to blast cold air.
“I am told there are judges who believe it keeps everyone awake,” Chutkan said.
Not strictly business
Chutkan was consistently upbeat when the jury was present, smiling often in their direction, checking on their comfort and flashing an occasional joke or sly comment from the bench.
When a prosecutor inadvertently referred to a Capitol Police officer as “senator” instead of “sergeant,” Chutkan interjected: “Big promotion … or demotion.”
Ohm, too, often spoke in familiar and colloquial terms with jurors, referring to efforts by congressional Republicans to challenge the election results as “shenanigans” and specifically describing Trump’s conduct toward his vice president, Mike Pence, as a “pressure campaign,” wondering whether the Secret Service ever evaluated the threat Trump directly posed to Pence.
At one point, while describing the process of the Jan. 6 session of Congress, Ohm referenced then-Second Lady Karen Pence, who was at the Capitol that day, and called her “mother” — an inside-baseball reference to Pence’s pet name for his wife.
Chutkan quickly recognized Ohm’s wisecrack and interjected in with a wrist-slapping scold: “Mr. Ohm!” she said while smiling slyly.
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